In response to the COVID-19, or Cornoavirus, crisis, the Department of Homeland Security is allowing employers who have temporarily shifted to remote workforces to provisionally review work authorization documents remotely – or virtually – to complete Section 2 of their Form I-9s.
We asked Katie Robinson, Corporate Counsel for Employment Screening Services, to answer some of the frequently asked questions about how to comply with the DHS's relaxed requirements.
ESS Corporate Counsel
How do employers “inspect” Section 2 documents under these temporary procedures?
"First, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2," said Robinson. "Employers who take advantage of this option must provide written documentation of their remote onboarding and telework policy for each employee, if audited by DHS."
Does a virtual inspection of the Section 2 documents fulfill employers’ Form I-9 requirements for good?
"No. Employers must conduct a traditional physical inspection when the company returns to normal operations," Robinson shared.
The DHS requirements state that once the documents have been physically inspected, the employer should add 'documents physically examined' with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
"At this time, employers should also enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field."
Does this policy apply to all employers with remote employees?
"No. This provision only applies to employers and workplaces that are operating fully remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time," said Robinson. "However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS reports that it will evaluate those situations on case-by-case bases."
How can employers who do not qualify for this exception complete Form I-9s for new remote employees?
Per Robinson, employers may designate an authorized representative, to act on their behalves to complete Section 2. The authorized representative can be any person the employer designates, such as a notary public.
"Employers shouldn’t forget that they are liable for any violations in connection with the form or the verification process," she said. This includes any violations in connection with the form or the verification process, including any violations caused by an authorized representative."
How long will the relaxed requirements last?
This policy will be effective until May 19, 2020 OR within 3 business days after the termination of the COVID-19 National Emergency, whichever comes first, unless DHS updates the guidelines before then.